Opinion of Advocate General Tesauro delivered on 8 April 1992

1 Original language: Italian.

2 OJ 1977 L 26, p. 1.

3 Alike, II ZR 164/88, BB p. 311.

4 Bundesgesetzblatt I, 1978, p. 1959.

5 In fact the Landericht merely states that it is not necessary to give a decision since the information has already been supplied, without specifying the kind or amount of information provided in response to Mr Meilicke's request.

6 See for example Die Verschleierte Sacheinlage; eine deutsche Fehlentwicklung, Stuttgart 1989; Die Kapitalaufbringungsvorschriften als Sanierungsbremse-Ist die deutsche Interpretation des § 27 Abs 2 AktG-richtlinienkonform in DB, 1989, p. 1067 et seq.; and also Meilicke-Recq, L'apport de créances détenues sur une Société en difficulté financière, in Revue Trimestrelle de Droit Européen, 1991, p. 587.

7 Such a position undermines, in my view, the plaintiff's actual interest in bringing an action. Joost, commenting on the Landgericht's order for reference (EWiR § 183 AktG 1/91, p. 325), expressed doubts as to the admissibility of the application seeking information itself, specifically because Meilicke himself considers the doctrine of disguised contributions in kind to be without foundation, thus invalidating the basis of the right to the information.

8 This is in fact a peripheral matter which is without conse-âuence, at least in so far as there is no reason to believe that ie proceedings before the national court are in the nature of a procedural device fabricated by the parties in the manner described by the court in the well-known judgments in Case 104/79 Foglia v Novello I [1980] ECR 745 and in Case 244/80 Foglia v Novello II [1981] ECR 3045).

9 See Order in Case C-286/88 Falciola [1990] ECR I-191, paragraph 8; and judgment in Case 126/80 Sabnia [1981] ECR 1563, paragraph 6.

10 See most recently the judgment in Case C-231/89 Gmurzynska [1990] ECR I-4016, paragraph 23.

11 Joined Cases C-297/88 and C-197/89, [1990] ECR I-3763, paragraphs 31 to 43.

12 Case 244/80, cited above, paragraph 18.

13 Judgments in Case 35/85 Ussier [1986] ECR 1207, paragraph 9; Case 54/80 Wilner [1980] ECR 3673, paragraph 4; Case 4/79 Providence Agricole de la Champagne [1980] ECR 2823, paragraph 15.

14 In this connection, see point 7 above.

15 See the judgments cited in footnote 12.

16 Case C-381/89 Evangeliki Ekklissia [1992] ECR I-2111.

17 In that regard, I would point out that in France, Belgium and the United Kingdom, voluntary setoff is permitted in the case of a liquidated and payable claim; that is the case even where the company is making a loss; in Italy, setoff by operation of law is permitted, the same conditions applying. In Germany, on the other hand, a shareholder is precluded from availing himself of the possibility of setting the debt arising from a contribution off against a claim vested in the subscriber (Paragraph 66 AktG); however, it is considered that the company may follow such a procedure to discharge its obligation to extinguish a debt whenever the claim is liquidated, payable and vollwertig (in other words, not subject to depreciation in view of the company's financial status).

18 The rules in question have been borrowed from German company law, the only legal system which envisages such a case (I refer to the Nachgründung to which Paragraph 52 of the AktG relates).

19 In any event, it does not apply to acquisitions effected after the expiry of two years as laid down in the provision in question (or such longer terms as may have been laid down by the national legislature).

20 It is quite clear that the case referred to may arise only in connection with an increase in capital, since there are extremely few cases in which a claim could be made against (and contributed to) a company which had not yet been incorporated; in essence that can only be done in respect of the costs of setting up the company itself.

21 A case such as that described here might, in the absence of specific rules, arise where a transaction is carried out to circumvent the taw and therefore is penalized by being declared void. Naturally, in such a case it would be necessary to prove the existence of circumstances characterizing a transaction designed to circumvent the law, namely the fact that the transaction is capable of achieving the same result as that which is prohibited, together with the intention, on the part of both parries, to circumvent a mandatory provision.

22 Joined Cases C-19/90 and C-20/90 Karelia and Karellas [1991] ECR I-2691.

23 Case C-381/89 Evangeliki Ekklissia, cited in footnote 15, at paragraph 39.

24 In that regard, I would add, with reference to the doctrine of disguised contributions in kind, that it is difficult to understand the standpoint of the Bundesgerichtshof in its abovementioned judgment of 15 January 1990, or that of the Bundesverfassungsgericht in its judgment of 27 August 1991 (Der Betrieb, 1991, p. 2230), according to which the Second Directive is so ... clear that no interpretation is needed: the basis for that view being the judgment in Case C-2S3/81 CILFIT [1982] ECR 3415). I would merely point out that that judgment expressly states that the national court must, before coming to the conclusion that there is no need to make a reference to the Court, be convinced that the matter is equally obvious to the courts of the other Member States and to the Court of Justice {paragraph 16). As regards any doubts of interpretation which the theory of disguised contributions in kind may raise with respect to the relevant provisions of the Second Directive, suffice it to refer here to the differences in the way it is applied in the various Member States, and the debate among legal academic writers on that subject, particularly in Germany, to show that the interpretation of the directive in question is not so clear. In those circumstances, the reference to the CILFIT judgment is inappropriate to say the least.

25 Case 111/75 Mazzalai [1976] ECR 657, paragraph 10.

26 Case C-106/89 [1990] ECR I-4135, paragraph 8.